948 F.

2d 783
60 USLW 2314

UNITED STATES, Appellee,

v.
Michael J. AUSTIN, Defendant, Appellant.
UNITED STATES, Appellant,
v.
Michael J. AUSTIN, Defendant, Appellee.
Nos. 91-1245, 91-1252.

United States Court of Appeals,

First Circuit.
Heard Aug. 2, 1991.
Decided Oct. 8, 1991.

Robert M. Napolitano, for Michael J. Austin.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen,
U.S. Atty., and Nicholas M. Gess, Asst. U.S. Atty., on brief for U.S.
Before TORRUELLA, Circuit Judge, HILL,* Senior Circuit Judge, and
SELYA, Circuit Judge.
HILL, Senior Circuit Judge.

On the eve of trial on a six count drug indictment, Appellant entered guilty
pleas to all the charges. Appellant subsequently brought a motion to withdraw
those guilty pleas, which was denied by the district court after a full evidentiary
hearing on the motion. The district court found that the Appellant had
committed perjury at this hearing. At the sentencing hearing, the district court
denied Appellant's request for a two point reduction to Appellant's base offense
level under Federal Sentencing Guidelines for acceptance of responsibility.

Appellant appeals from the district court ruling denying his plea withdrawal
and refusal to grant the two point offense level reduction. He asserts that (1) the
district judge abused his discretion in finding that Appellant was not hampered

in his decision to plead guilty by ineffective assistance of counsel and (2) the
district judge erred in refusing to grant a two point offense level reduction.
3

Appellee United States cross appeals, asserting that, upon the finding of
perjured testimony by Appellant, the district court judge was required by
Federal Sentencing Guidelines to impose a two point enhancement to the base
offense level for obstruction of justice.

We hold that Appellant's claim of error is without merit and affirm the district
court's denial of the plea withdrawal. We affirm the district court's denial of a
two point offense level reduction and hold that, upon finding that the Appellant
perjured himself before the district court, Federal Sentencing Guidelines
mandates a two point enhancement for obstruction of justice. We remand for
resentencing.

I. BACKGROUND
5

Appellant was charged in a grand jury indictment with six counts of drug
trafficking offenses involving substantial amounts of cocaine. The day before
the case was scheduled to proceed with jury selection and trial, the Appellant
appeared before the district court and tendered a plea of guilty to each count of
the indictment in an extensive and thorough Rule 11 hearing. No plea
arrangement with the government existed. At the Rule 11 hearing, Appellant
stated he was satisfied with counsel, had adequate opportunity to discuss the
charges against him with counsel, understood his right not to plead guilty, and
comprehended the full impact of his guilty pleas. Eighteen days later, the
Appellant filed a Fed.R.Crim.Pro. 32(d) motion to Withdraw Pleas of Guilty,
signed by newly retained counsel. The gravamen of Appellant's motion was that
his guilty pleas were not voluntarily entered because, in recommending the
guilty pleas at the eleventh hour before trial, previous counsel had afforded
Appellant too little time to consider whether a guilty plea was appropriate and
that, in essence, the guilty pleas were not informed ones. See United States v.
Austin, 743 F.Supp. 72, 77 (D.Me.1990). A full evidentiary hearing on the
motion to withdraw was held and after hearing testimony from both Appellant
and his previous counsel the district court ruled Appellant's tendering of the
guilty pleas was "a knowing and voluntary surrender of [Appellant's] right to a
trial based upon his receipt of competent advice from his retained counsel." Id.
at 79. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984) (cited as controlling in Rule 32(d) motions in United States v.
Ramos, 810 F.2d 308, 314 (1st Cir.1987)). Finding no evidence of deficiency or
lack of diligence on the part of Appellant's counsel, the district court denied
Appellant's motion. It is from that ruling that Appellant brings his first appeal.

II. APPELLATE JURISDICTION

6

As a preliminary matter, we rule that this inquiry is properly before us. In the
vast majority of ineffective assistance of counsel claims sought to be brought
on direct appeal after completion of a trial on the merits, no record exists for
the appellate court to examine in assessing the validity of the claim. In those
situations, we have consistently held that the proper route for such a claim is in
a collateral proceeding in the district court pursuant to 28 U.S.C. 2255. See
United States v. Caggiano, 899 F.2d 99, 100 (1st Cir.1990); United States v.
Hoyos-Medina, 878 F.2d 21, 22 (1st Cir.1989). In a collateral proceeding, a full
evidentiary hearing may be held and a full record developed. We refuse to hear
the matter for the first time on appeal. Fairness to the parties and judicial
economy both warrant that, absent extraordinary circumstances, an appellate
court will not consider an ineffective assistance claim where no endeavor was
first made to determine the claim at the district level. United States v. HoyosMedina, 878 F.2d at 22; United States v. Carter, 815 F.2d 827, 829 (1st
Cir.1987); see United States v. Hart, 933 F.2d 80, 82 (1st Cir.1991).

In the case before us, however, the Appellant's claim is confined to matters
found in the record and can be determined without the need for additional fact
finding. The issue of adequacy vel non of defense counsel was placed directly
before the district court. The asserted ground for the plea was ineffective
assistance. In order to decide the motion to withdraw the plea, the district court
held a full evidentiary hearing and made findings of fact. Consequently, the
issue is properly before us on appeal and will be heard. See United States v.
Caggiano, 899 F.2d at 10; Brien v. United States, 695 F.2d 10, 13 (1st
Cir.1982).III. APPELLANT'S CLAIM OF DISCRETIONARY ABUSE
A. Plea Withdrawal

Once a guilty plea has been entered, a defendant has no absolute right to
withdraw that plea. United States v. Buckley, 847 F.2d 991, 998 (1st Cir.1988),
cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989); United
States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.1983). Where a motion to
withdraw is brought prior to sentencing, the district court should allow it only if
there is a "fair and just reason" for doing so. Fed.R.Crim.Pro. 32(d); United
States v. Buckley, 847 F.2d at 998. In making this determination, a number of
factors are to be considered, most importantly whether the defendant's guilty
plea can, in light of the tendered reason for withdrawal, still be considered a
voluntary and intelligent relinquishment of a known right and otherwise in
conformity with Fed.R.Crim.Pro. 11. See United States v. Pellerito, 878 F.2d
1535, 1537 (1st Cir.1989); United States v. Buckley, 847 F.2d at 79-80.

B. Ineffective Assistance
9

The crux of Appellant's original motion and present appeal rests on the
contention that his pleas were not voluntarily entered because defense counsel,
at the eleventh hour before trial, conceded no viable defense existed to the
government's charges and recommended guilty pleas.1 Appellant claims he was
afforded too little time to consider whether to plead guilty. Implicit in the
Appellant's claim is the assertion that he would not have given up his right to a
trial had he had more time to consider counsel's recommendation on entry of
the guilty pleas. The district court correctly posited the inquiry before it as
determining whether counsel's performance in advising guilty pleas fell below
the standard of performance of reasonable proficient counsel and whether, by
such inadequate performance, Appellant was induced to enter guilty pleas
which he otherwise would not have entered. United States v. Austin, 743
F.Supp. at 78; see United States v. Pellerito, 878 F.2d at 1537-38 (citing Hill v.
Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)).
C. Appellate Review

10

Where ineffective assistance claims are properly before them, and the correct
legal rule has been applied, appellate courts should accord high deference to the
district court's ruling on the issue. United States v. Pellerito, 878 F.2d at 1538.
The district court judge views the inquiry from a particularly strong vantage
point, having overseen pretrial proceedings, conducted Rule 11 inquiries,
accepted the original guilty pleas and heard first hand evidence on whether it
should be withdrawn. Appellate courts ought ordinarily defer to these decisions
made by the district court "on the front lines." Id. at 1538. Other than for clear
errors in subsidiary fact finding, the trial judge's refusal to allow a guilty plea
withdrawal will be disturbed on appeal only for demonstrable abuse of
discretion. Id. at 1538; see United States v. Buckley, 847 F.2d at 998.

11

We find no clear error or discretionary abuse in the district court ruling. The
Appellant's contention that counsel was somehow inefficient because he
continued searching for potential defenses right up to the eve of trial is without
merit. Examination of the carefully considered opinion of the district court and
the record reveal no errors in the fact finding process. The Appellant conceded
to the district court that the government's version of the case was substantially
true and did not assert a claim of legal innocence or suggest the existence of any
meritorious defenses. Appellant understood and accepted his attorney's advice
to plead guilty. He was free to choose more time to decide how to plead and
there is no evidence of duress, threats or harassment. No evidence has been
offered which proves that reasonably proficient counsel would have concluded

there was no viable defense and recommended a guilty plea sooner than
retained counsel. Appellant may have, in retrospect, been unhappy with his
decision to plead guilty, but that is not grounds for allowing a plea withdrawal.
We are satisfied that the district court took the requisite steps in discovering
and evaluating the facts necessary to determine Appellant's motion. Appellant
offers no evidence of clear error in that fact finding process. The district court
was fully satisfied, as are we, that Appellant's decision to enter guilty pleas was
a knowing and voluntary surrender of his known right to a trial based upon
competent advice from his retained counsel.
12

Regarding the Appellant's claim of discretionary abuse at the district level, we

have repeatedly found no abuse of discretion in denial of Fed.R.Crim.Pro. 32(d)
motions where Rule 11 procedures were assiduously followed. United States v.
Ramos, 810 F.2d 308, 312 (1st Cir.1987); United States v. Crosby, 714 F.2d
185, 192 (1st Cir.1983). Strict compliance with Rule 11 is quite often
dispositive in determining whether a defendant has knowingly and voluntarily
entered a guilty plea. Such compliance ensures that guilty pleas become part of
the record; that the reviewing court confirms the voluntariness of the plea; that
defendant understands the rights and consequences surrounding the plea; that
the court determines that a factual basis exists for the plea; and that the
defendant understands all these matters. See United States v. Ramos, 810 F.2d
at 313. After examining the record, we find no deficiency in the Rule 11
hearing nor is any evidence of such offered by Appellant. No other evidence of
discretionary abuse exists in the district court's ruling.2 No basis exists upon
which Appellant can contend that there was a defect in the Rule 11 proceeding
or that his guilty pleas were anything other than the product of his own free
will and voluntary decision at the time of the Rule 11 proceeding. Accordingly,
the district court ruling denying Appellant's motion to Withdraw Pleas of Guilty
pursuant to Fed.R.Crim.Pro. 32(d) is AFFIRMED.

IV. SENTENCING REDUCTION

13

At the sentencing hearing, the district court denied Appellant's request for a two
point base offense level reduction under Federal Sentencing Guidelines
3E1.1.3 Appellant claimed he was entitled to the reduction because he had
confessed to his crimes, thus accepting personal responsibility. However,
3E1.1 applies to defendants who "clearly demonstrates a recognition and
affirmative acceptance of personal responsibility" for criminal conduct4 and
does not apply "as a matter of right" to all defendants who enter guilty pleas.5
The sentencing judge commented on the number of occasions upon which he
had observed the Appellantand remained unconvinced the Appellant held any
remorse whatever regarding his crimes, much less accepted meaningful

responsibility for the significance of his crimes. The district court judge was
fully satisfied of the appropriateness of denying the Appellant's request for a
two point offense level reduction.
14

The official comment to Federal Sentencing Guideline 3E1.1 provides:

15 sentencing judge is in a unique position to evaluate a defendant's acceptance of

"The
responsibility. For this reason, the determination of the sentencing judge is entitled
to great deference on review." 6
16

Because we accord this deference and because we find Appellant's claim of a

clear demonstration of acceptance of responsibility incompatible with the fact
that he lied under oath during the Fed.R.Crim.Pro. 32(d) hearing, we AFFIRM
the district court's denial of the two point offense level reduction.

V. SENTENCING ENHANCEMENT
17

At sentencing, the district court held that Appellant had intentionally testified
untruthfully at the Fed.R.Crim.Pro. 32(d) hearing. Specifically, the district
court found the testimony to constitute perjury and an unsuccessful attempt to
obstruct justice. Yet the district court judge concluded the Appellant was not
subject to a two point offense level enhancement pursuant to Federal
Sentencing Guidelines 3C1.1 for obstructing or impeding the administration
of justice.7 The district judge gave two reasons for deciding not to impose the
offense level enhancement. First, the perjury was committed before a judge, not
a jury. The district judge conceded that, had the perjury been sworn before a
jury, he would have no compunction against imposing the enhancement.
Second, the perjury was, in the judge's view, a hopelessly transparent, naive
and misguided effort to mislead the court which stood no chance of success
before the judge. Because the district court judge viewed the perjured
testimony to be foolish and abortive from start to finish, he declined imposition
of the Federal Guidelines 3C1.1 enhancement.

18

The district judge ought, on occasion, be allowed to exercise discretion in

sentencing. However, where a defendant perjures himself before the court, the
court is without discretion in imposing the two point base offense level
enhancement found in Federal Sentencing Guidelines 3C1.1. The official
commentary to 3C1.1 includes a non-exclusive listing of the types of conduct
to which the enhancement applies. Included within the listing is "committing,
suborning, or attempting to suborn perjury."8 The official comment does not
grant discretionary powers in determining whether to enhance the offense level
once perjury is attempted or committed. Once the district court found that the

Appellant's testimony was intentionally untrue and constituted perjury, the

court was mandated by Federal Sentencing Guidelines to impose the 3C1.1
two level enhancement.
19

The district court judge's dual bases for not imposing the enhancement despite
the specific finding of perjury--that the testimony was given before a judge
rather than a jury and was hopelessly naive, misguided and transparent from
start to finish--are not grounds for denying the enhancement. We defer to the
district court's determination of Appellant's credibility based on first hand
observation, see United States v. Batista-Polanco, 927 F.2d 14, 22 (1st
Cir.1991), but we cannot affirm the district court's reasoning for refusing to
impose the enhancement.

20

That the perjured testimony was "hopelessly transparent, naive [and]

misguided" is inadequate grounds for refusing the enhancement as the plain
language of the sentencing guidelines commentary states the enhancement
applies to "... attempts to suborn perjury"9 as well as actual commissions of
perjury. We would hope that all attempts at perjury were hopelessly misguided
and unsuccessful and hold that the perjury need not be, or be likely to be,
successful in order to warrant the enhancement.10

21

The fact that the perjured testimony was given before a judge rather than a jury
is likewise inadequate grounds for denying the enhancement. We have upheld
the 3C1.1 enhancement where perjured testimony was given before a judge,
see United States v. Batista-Polanco, 927 F.2d at 17 (1st Cir.1991), and will not
distinguish application of 3C1.1 on the basis of whether the defendant
perjures himself before the judge or jury. The distinction finds no support in
either the official commentary to 3C1.1 or case law. To sanction the
distinction here would send the message to defendants that they need have less
concern for the consequences of the oath when testifying before a judge than
they do when testifying before a jury. The aim of 3C1.1, and the aim of the
oath itself, is to ensure judicial integrity by promoting truthfulness in all
proceedings, not just those where a jury is involved. Thus, we also find the
second basis of the district court sentencing decision inadequate grounds for
denying the enhancement.

22

In conclusion, we hold that, upon finding Appellant had perjured himself during
the Fed.R.Crim.Pro. 32(d) hearing, the district court was, without discretion,
mandated to enhance the Appellant's base offense level by two levels as
prescribed by Federal Sentencing Guidelines 3C1.1. The offense level
enhancement applies to unsuccessful and foolish attempts as well as the more

savvy attempts at perjury. The enhancement applies regardless of whether the

perjury was attempted before a judge or jury.
VI. JUDGMENT
23

We AFFIRM the judgment of the district court denying the motion to withdraw
the guilty plea.

24

We AFFIRM the decision of the district court denying the two point offense
level reduction.

25

Because we find that the district court erred in not enhancing the base offense
level by two levels, we VACATE the sentence and REMAND for resentencing.

26

Affirmed in part; vacated and remanded in part.

Of the Eleventh Circuit, sitting by designation

Appellant also asserts that counsel's failure to file a trial brief on time adversely
impacted upon the effectiveness of representation. While we agree that
counsel's preparation for the case might have been more timely and do not
condone failure to comply with local filing rules, the failure to file a trial brief
had no impact on the Appellant's state of mind at the time he considered his
guilty pleas. There is no indication the Appellant was even aware the brief had
not been filed at the time he entered his pleas. See United States v. Austin, 743
F.Supp. at 77 n. 7. Given counsel's ultimate conclusion that Appellant had no
viable defense and Appellant's acceptance of guilt, the Appellant may have
been well served by the failure to file a trial brief as the brief would have
revealed at an early stage no defense to the drug charges existed

No evidence is offered by the Appellant of a material factor worthy of

significant weight having been ignored by the district court, or of an improper
factor having been relied upon. See Independent Oil & Chemical Workers v.
Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.1988)

Federal Sentencing Guidelines 3E1.1 provides:

Acceptance of Responsibility
(a) If the defendant clearly demonstrates a recognition and affirmative

acceptance of personal responsibility for his criminal conduct, reduce the

offense level by 2 levels.
(b) A defendant may be given consideration under this section without regard
to whether his conviction is based upon a guilty plea or a finding of guilt by the
court or jury or the practical certainty of conviction at trial.
(c) A defendant who enters a guilty plea is not entitled to a sentencing reduction
under this section as a matter of right.
U.S.S.G. 3E1.1 (1990).
4 U.S.S.G. 3E1.1(a) (1990).
5 U.S.S.G. 3E1.1.
6 U.S.S.G. 3E1.1, commentary, note 5 (1990).
7

Federal Sentencing Guideline 3C1.1 states:

Obstructing or Impeding the Administration of Justice
If the defendant willfully obstructed or impeded, or attempted to obstruct or
impeded, the administration of justice during the investigation, prosecution, or
sentencing of the instant offense, increase the offense level by two levels.
U.S.S.G. 3C1.1.
8 U.S.S.G. 3C1.1, commentary at 3(b) (1990).
9 U.S.S.G. 3C1.1, commentary at 3(b) (1990).

10

To hold otherwise, that the enhancement applies only to successful attempts at

perjury, makes no sense. How would a sentencing court know whether perjury
had been committed if the false testimony were not discovered? One other court
has ruled the 3C1.1 Sentencing Enhancement is mandatory where the
defendant lied "openly, continuously [and] ridiculously." United States v.
Alvarez, 927 F.2d 300, 303 (7th Cir.1991). We have recently upheld the
3C1.1 enhancement where the district court found the defendant had perjured
himself in testifying to a "self-serving cock and bull story." United States v.
Akitoye, 923 F.2d 221, 228 (1st Cir.1991). Another court has ruled that the
attempt at obstruction need not be successful to warrant the increase. See
United States v. Yerks, 918 F.2d 1371, 1375 (8th Cir.1990); United States v.
Blackman, 904 F.2d 1250, 1259 (8th Cir.1990)